[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Rules and Regulations]
[Pages 17131-17134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07028]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0048; FRL-9960-54-Region 4]


Air Plan Approval; Kentucky; Nonattainment New Source Review 
Requirements for the 2008 8-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
portion of the State Implementation Plan (SIP) revision submitted by 
the Commonwealth of Kentucky, through the Energy and Environment 
Cabinet's Division of Air Quality on August 26, 2016, regarding the 
nonattainment new source review (NNSR) requirements for the 2008 8-hour 
ozone national ambient air quality standards (NAAQS) for the Kentucky 
portion of the Cincinnati-Hamilton, Ohio-Kentucky-Indiana 2008 8-hour 
ozone nonattainment area (hereinafter referred to as the ``Cincinnati-
Hamilton, OH-KY-IN Area'' or ``Area''). The Area consists of Butler, 
Clermont, Clinton, Hamilton, and Warren Counties in Ohio; portions of 
Boone, Campbell, Kenton Counties in Kentucky; and a portion of Dearborn 
County in Indiana. This action is being taken pursuant to the Clean Air 
Act (CAA or Act) and its implementing regulations.

DATES: This direct final rule is effective June 9, 2017 without further 
notice, unless EPA receives adverse comment by May 10, 2017. If EPA 
receives such comments, it will publish a timely withdrawal of the 
direct final rule in the Federal Register and inform the public that 
the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0048 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Andres Febres of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mr. Febres can be reached via telephone at (404) 562-8966 
or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under 
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is 
attained when the 3-year average of the annual fourth-highest daily 
maximum 8-hour average ambient air quality ozone concentrations is less 
than or equal to 0.075 ppm. Ambient air quality monitoring data for the 
3-year period must meet a data completeness requirement. The ambient 
air quality monitoring data completeness requirement is met when the 
average percent of days with valid ambient monitoring data is greater 
than 90 percent, and no single year has less than 75 percent data 
completeness as determined in appendix I of part 50.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. As part of the designations 
process for the 2008 8-hour ozone NAAQS, the Cincinnati-Hamilton, OH-
KY-IN Area was designated as a marginal ozone nonattainment area, 
effective July 20, 2012. See 77 FR 30088 (May 21, 2012). On March 6, 
2015, EPA issued a final rule entitled, ``Implementation of the 2008 
National Ambient Air Quality Standards for Ozone: State Implementation 
Plan Requirements'' (SIP Requirements Rule), which establishes the 
requirements that state, tribal, and local air quality management 
agencies must meet as they develop implementation plans for areas where 
air quality exceeds the 2008 8-hour ozone NAAQS.\1\ See 80 FR 12264. 
Areas

[[Page 17132]]

that were designated as marginal ozone nonattainment areas were 
required to attain the 2008 8-hour ozone NAAQS no later than July 20, 
2015 (3 years after the effective date of designation).\2\ See 40 CFR 
51.1103.
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    \1\ The SIP Requirements Rule addresses a range of nonattainment 
area SIP requirements for the 2008 8-hour ozone NAAQS, including 
requirements pertaining to attainment demonstrations, reasonable 
further progress (RFP), reasonably available control technology, 
reasonably available control measures, major new source review, 
emission inventories, and the timing of SIP submissions and of 
compliance with emission control measures in the SIP. The Rule also 
revokes the 1997 8-hour ozone NAAQS and establishes anti-backsliding 
requirements.
    \2\ On May 4, 2016 (81 FR 26697), EPA published its 
determination that the Area had attained the 2008 8-hour ozone NAAQS 
by the attainment deadline. However, an attainment determination is 
not equivalent to a redesignation under CAA section 107(d)(3). The 
Area will remain nonattainment for the 2008 8-hour ozone NAAQS and 
subject to the NNSR requirements for that NAAQS until such time as 
EPA determines that the Area meets the requirements for 
redesignation to attainment.
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    Based on the nonattainment designation for the 2008 8-hour ozone 
standard, Kentucky was required to develop a SIP revision addressing 
certain CAA requirements for the Kentucky portion of the Area. On 
August 26, 2016, the Commonwealth of Kentucky submitted a SIP revision 
addressing, among other things, NNSR requirements for the 2008 8-hour 
ozone NAAQS for the Kentucky Area. EPA's analysis of how this SIP 
revision addresses the NNSR requirements for the 2008 8-hour ozone 
NAAQS is provided below.

II. Analysis of Kentucky's Nonattainment New Source Review Requirements

    The minimum SIP requirements for NNSR permitting programs for the 
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 
51.1114. These NNSR program requirements include those promulgated in 
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (70 FR 
71612) and the SIP Requirements Rule for implementing the 2008 8-hour 
ozone NAAQS (80 FR 12264). Under the Phase 2 Rule, the SIP for each 
ozone nonattainment area must contain nonattainment NSR provisions 
that: Set major source thresholds for nitrogen oxides (NOX) 
and volatile organic compounds (VOC) pursuant to 40 CFR 
51.165(a)(1)(iv)(A)(1)(i)-(iv) and (a)(1)(iv)(A)(2); classify physical 
changes as a major source if the change would constitute a major source 
by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any 
significant net emissions increase of NOX as a significant 
net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); 
consider certain increases of VOC emissions in extreme ozone 
nonattainment areas as a significant net emissions increase and a major 
modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set 
significant emissions rates for VOC and NOX as ozone 
precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain 
provisions for emissions reductions credits pursuant to 40 CFR 
51.165(a)(3)(ii)(C)(1) and (2); provide that the requirements 
applicable to VOC also apply to NOX pursuant to 40 CFR 
51.165(a)(8); and set offset ratios for VOC and NOX pursuant 
to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under 
the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the 
SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each 
ozone nonattainment area designated nonattainment for the 2008 8-hour 
ozone NAAQS and designated nonattainment for the 1997 8-hour ozone 
NAAQS on April 6, 2015, must also contain NNSR provisions that include 
the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 
51.165(a)(12).
    Kentucky has a longstanding and fully implemented NNSR program 
(found at 401 Kentucky Administrative Regulation (KAR) 51:052) that 
establishes air quality permitting requirements for the construction or 
modification of major stationary sources located within, or impacting, 
areas designated as nonattainment. EPA last approved revisions to the 
SIP-approved version of Kentucky's NNSR rule on September 15, 2010. 
Those revisions, submitted to EPA in a February 5, 2010 SIP revision, 
addressed the NNSR requirements in the Phase 2 Rule for the 1997 8-hour 
ozone NAAQS. In approving the revisions to Kentucky's NNSR rule, EPA 
found the revisions to be in accordance with the changes in the federal 
NSR program for the 1997 8-hour ozone NAAQS.\3\ See 75 FR 55988. In 
Kentucky's August 26, 2016 SIP revision, the Commonwealth states that 
its NNSR program is applicable to the 2008 8-hour ozone NAAQS and cites 
to the program as containing acceptable provisions to provide for new 
source review in the Kentucky portion of the Area.
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    \3\ In that action, EPA determined that the SIP revision was 
consistent with changes to federal NSR requirements (40 CFR 51.165 
and 51.166 and the Phase II Rule) relating to the incorporation of 
nitrogen oxides as an ozone precursor. See 75 FR 55988 (September 
15, 2010).
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    The version of 401 KAR 52:052 that is contained in the current SIP 
has not changed since the 2010 rulemaking. This version of the rule 
covers the Kentucky portion of the Area and is adequate to meet all 
applicable NNSR requirements for the 2008 8-hour ozone NAAQS. The Phase 
2 requirements for 8-hour ozone nonattainment areas classified as 
serious or above remain inapplicable because the Area is classified as 
a marginal nonattainment area for the 2008 8-hour NAAQS, and the anti-
backsliding requirements added in the SIP Requirements Rule for 
implementing the 2008 8-hour ozone NAAQS are inapplicable because the 
Kentucky portion of the Area was redesignated to attainment for the 
1997 8-hour ozone NAAQS in 2010.\4\ As stated above, the anti-
backsliding requirements for NNSR in the SIP Requirements Rule only 
apply to areas designated nonattainment for the 2008 8-hour ozone NAAQS 
and designated nonattainment for the 1997 8-hour ozone NAAQS on April 
6, 2015.
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    \4\ See 75 FR 47218 (August 5, 2010). The 1997 8-hour ozone 
NAAQS was revoked with the 2008 8-hour ozone NAAQS SIP Requirements 
Rule, and as discussed above, the anti-backsliding requirements for 
the 1997 8-hour ozone NAAQS only apply for areas that were 
nonattainment for the 1997 standard on the effective date of the 
revocation (April 6, 2015). See 80 FR 12264 (March 6, 2015).
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III. Final Action

    EPA is approving the portion of Kentucky's August 26, 2016, SIP 
revision addressing the NNSR requirements for the 2008 8-hour ozone 
NAAQS for the Kentucky portion of the Cincinnati-Hamilton, OH-KY-IN 
Area. EPA has concluded that the Commonwealth's submission fulfills the 
40 CFR 51.1114 revision requirement and meets the requirements of CAA 
section 110 and the minimum SIP requirements of 40 CFR 51.165.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective June 9, 2017 
without further notice unless the Agency receives adverse comments by 
May 10, 2017.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on June 9, 2017 and no 
further action will be taken on the proposed rule.

[[Page 17133]]

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 9, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of this Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 15, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart S--Kentucky

0
2. Section 52.920(e) is amended by adding an entry for ``2008 8-hour 
ozone NAAQS Nonattainment New Source Review Requirements for the 
Kentucky Portion of the Cincinnati-Hamilton OH-KY-IN Area'' at the end 
of the table to read as follows:


Sec.  52.920  Identification of plan.

* * * * *
    (e) * * *

                                                     EPA-Approved Kentucky Non-regulatory Provisions
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                                                                   State
    Name of non-regulatory SIP      Applicable geographic or  submittal date/           EPA approval date                       Explanations
            provision                  nonattainment area     effective date
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                                                                      * * * * * * *
2008 8-hour ozone NAAQS            Boone, Campbell and             8/26/2016  4/10/2017, [Insert Federal Register
 Nonattainment New Source Review    Kenton Counties (part)                     citation].
 Requirements for the Kentucky      (Kentucky portion of the
 Portion of the Cincinnati-         Cincinnati-Hamilton, OH-
 Hamilton OH-KY-IN Area.            KY-IN Area).
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[FR Doc. 2017-07028 Filed 4-7-17; 8:45 am]
 BILLING CODE 6560-50-P